973 N.W.2d 427
N.D.2022Background
- Long-running trust litigation dating to 2009 over a July 16, 2008 order reforming the Emelia Hirsch June 9, 1994 Irrevocable Trust; this Court has repeatedly affirmed the 2008 reformation in prior decisions.
- Allen and Timothy Betz continued to file motions challenging the trust reformation; Timothy previously was found a vexatious litigant and subject to a pre-filing order (2017).
- In January 2020 Presiding Judge Gail Hagerty issued a proposed pre-filing notice to Allen; no final pre-filing order by her appears in the record before her retirement.
- Judge Bobbi Weiler (not the presiding judge) issued a September 30, 2021 order finding both Allen and Timothy vexatious and requiring leave before filing; Allen also sought Rule 60(b) relief which the court did not formally rule on.
- This appeal challenges the September 30, 2021 order; the Supreme Court (McEvers, J.) affirmed in part, vacated in part, dismissed in part, awarded costs/fees, and remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Validity of pre-filing order issued by Judge Weiler as to Allen (procedure) | Allen: order invalid because Rule 58 requires the presiding judge to issue the pre-filing order | Trustees: pre-filing restriction warranted based on repeated meritless filings | Court: vacated Weiler's pre-filing determination as to Allen — only the presiding judge may issue Rule 58 pre-filing orders; remand to presiding judge |
| Validity of pre-filing order as to Timothy | Timothy: district court violated Rule 58 procedures and guidelines | Trustees: restriction proper given Timothy’s history; enforcement appropriate | Court: error in Weiler issuing order was harmless because Timothy already subject to 2017 pre-filing order; appeal dismissed as to denial of leave (not appealable) |
| Ability to attack the July 16, 2008 reformation order on this appeal | Betzes: generally argued 2008 reformation was erroneous | Trustees: past appeals repeatedly rejected these challenges | Court: Betzes did not appeal from the 2008 order in this appeal and any direct appeal would be untimely; court declined to address reformation merits |
| Attorney’s fees and costs for frivolous appeal | Trustees: request fees/costs because appeal was another relitigation effort | Betzes: (implicitly) appeal not frivolous given contested procedural issues | Court: Allen’s Rule 58 appeal not frivolous — no fee award; Timothy’s arguments were frivolous — assessed $500 fees against him; double costs awarded against both appellants |
Key Cases Cited
- Matter of Emelia Hirsch Trust, 2021 ND 142, 963 N.W.2d 259 (prior affirmance and litigation history regarding the trust)
- Matter of Emelia Hirsch Trust, 2017 ND 291, 904 N.W.2d 740 (affirmed a pre-filing order finding Timothy a vexatious litigant)
- Meier v. Meier, 2014 ND 127, 848 N.W.2d 253 (timeliness of appeals and limitations on raising issues not properly appealed)
- Desert Partners IV, L.P. v. Benson, 2014 ND 192, 855 N.W.2d 608 (appeal time limits are jurisdictional)
- Alerus Fin., N.A. v. Erwin, 2018 ND 119, 911 N.W.2d 296 (motions not ruled on may be deemed denied)
- Wheeler v. State, 2021 ND 182, 965 N.W.2d 416 (denial of leave to file is not appealable)